As filed with the Securities and Exchange Commission on May 15, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Coffee People, Inc.
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(Exact name of registrant as specified in its charter)
Oregon 93-1073218
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(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
15100 SW Koll Parkway, Suite J
Beaverton, Oregon 97006-6026
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(Address of principal executive officers) (Zip Code)
1998 Stock Incentive Plan
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(Full title of the plans)
Kenneth B. Ross
Chief Financial Officer
Coffee People, Inc.
15100 SW Koll Parkway, Suite J
Beaverton, Oregon
(503) 672-9603
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(Name, address and telephone number of agent for service)
Copies to:
Ronald L. Greenman
Tonkon Torp LLP
1600 Pioneer Tower
888 S.W. Fifth Avenue
Portland, Oregon 97204
(503) 802-2006
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities offering aggregate Amount of
to be Amount to be price per offering registration
registered registered (1) share (2) price(2) fee (2)
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Common
Stock,
without 400,000
par value shares $3.4375 $1,375,000 $405.63
(1) This filing registers 400,000 shares of the Company's Common Stock reserved
for issuance under the Company's 1998 Stock Incentive Plan. There are also
registered an undetermined number of additional shares of Common Stock that may
become available for purchase in accordance with the provisions of the Plan in
the event of a change in the outstanding shares of Common Stock, including a
recapitalization.
(2) Based upon the estimated proposed maximum offering price for the 400,000
shares reserved for issuance under the 1998 Stock Incentive Plan, estimated
solely for purposes of calculating the registration fee, based upon the average
of the high and low prices of the Common Stock on May 12, 1998, as reported by
The Nasdaq Stock Market($3.4375 per share).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Coffee People, Inc., an Oregon
corporation (the "Company"), with the Securities and Exchange Commission are
incorporated by reference in this registration statement:
(a) The Company's annual report on Form 10-KSB for the year ended
December 31, 1997;
(b) The Company's Registration Statement on Form S-4, as amended,
effective April 27, 1998 (Registration No. 333-50905);
(c) The description of the Company's common stock, no par value
(the "Common Stock"), set forth in the Company's Registration Statement
on Form SB-2, as declared effective on September 25, 1996
(Registration No. 333-5376-LA); and
(d) The Company's quarterly report on Form 10-QSB for the
quarter ended March 31, 1998.
All documents filed by the Company subsequent to those listed above
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Oregon Business Corporation Act (the "Act") authorizes the
indemnification of an officer or director made party to a proceeding because the
officer or director is or was an officer or director against liability
(including amounts paid in settlement) incurred in the proceeding and against
expenses with respect to the proceeding (including attorney fees) if: (a) the
conduct of the officer or director was in good faith, (b) the officer or
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director reasonably believed that his conduct was in the best interests of the
corporation or at least not opposed to its best interests and (c) in the case of
a criminal proceeding, the officer or director had no reasonable cause to
believe his conduct was unlawful; provided, however, neither a director nor an
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officer may be indemnified in connection with (i) a proceeding by or in the
right of the corporation in which the director or officer was adjudged liable or
(ii) any other proceeding charging improper personal benefit to the director or
officer in which the director or officer was adjudged liable on the basis that
personal benefit was improperly received by the director or officer. The
Company's Restated Articles of Incorporation (the "Articles") allow and the
Company's Bylaws require the Company to indemnify officers and directors to the
fullest extent permissible by law.
The Act further provides that the articles of incorporation of a
corporation may provide that no director shall be personally liable to a
corporation or its stockholders for monetary damages for conduct as a director,
except that such provision does not eliminate the liability of a director (a)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law, (c) for any unlawful
distribution as defined under the Act or (d) for any transaction from which the
director derived an improper personal benefit. The Company's Articles and Bylaws
provide that, to the fullest extent permissible by law, no director shall be
personally liable to the Company or its stockholders for monetary damages.
In addition to the indemnification and exculpation provided by the
company's Articles and Bylaws, the Company may enter into an indemnification
agreement with each of its officers and directors providing indemnification to
the fullest extent permitted by law.
The effect of these provisions is to indemnify the directors and
officers of the Company against all costs and expenses of liability incurred by
them in connection with any action, suit or proceeding in which they are
involved by reason of their affiliation with the Company, to the fullest extent
permitted by law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed in the Index to Exhibits, which appears on page
II-7 herein, are filed as part of this registration statement.
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Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
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incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the above-referenced provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Beaverton, Oregon, on May 14, 1998.
COFFEE PEOPLE, INC.
By: /s/ Kenneth B. Ross
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Kenneth B. Ross
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below hereby constitutes and appoints Kenneth B. Ross his true and
lawful attorney-in-fact and agent, with full power of substitution for him in
any and all capacities, to sign any and all amendments or post-effective
amendments to this registration statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each such attorney and agent
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full power and authority to do any and all acts and things necessary or
advisable in connection with such matters, and hereby ratifying and confirming
all that the attorney and agent, or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
date(s) indicated:
Principal Executive Officer: Date:
/s/ Taylor H. Devine May 14, 1998
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Taylor H. Devine
President, Chief Executive
Officer and Director
Principal Financial Officer:
/s/ Kenneth B. Ross May 14, 1998
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Kenneth B. Ross
Chief Financial Officer
and Secretary
Directors:
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James L. Roberts
Chairman of the Board of
Directors
/s/ Gary G. Talboy May 15, 1998
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Gary G. Talboy
/s/ Doug L. Ayer May 14, 1998
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Doug L. Ayer
/s/ Jeffery M. Ferguson May 14, 1998
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Jeffery M. Ferguson
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INDEX TO EXHIBITS
Exhibit Number Exhibit Page
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4.1 Restated Articles of Incorporation(1)
4.2 Bylaws, as amended (2)
5 Opinion of Tonkon Torp LLP II-8
23.1 Consent of Arthur Andersen LLP, Independent Accountants II-9
23.2 Consent of Tonkon Torp LLP (included in Exhibit 5)
24.1 Power of Attorney (See Pages II-5 and II-6)
99.1 1998 Stock Incentive Plan (2)
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(1) Incorporated by reference from the Company's Registration Statement on Form
SB-2, as declared effective September 25, 1996 (Registration No. 333-5376-LA).
(2) Incorporated by reference from the Company's Registration Statement on Form
S-4, as declared effective on April 27, 1998 (Registration No. 333-50905).
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EXHIBIT 5
TONKON TORP LLP
Attorneys at Law
1600 Pioneer Tower
888 S.W. Fifth Avenue
Portland, Oregon 97204
(503) 221-1440
Fax: (503) 274-8779
May 15, 1998
To the Board of Directors
of Coffee People, Inc.
Ladies and Gentlemen:
We have acted as counsel for Coffee People, Inc. (the
"Company") in connection with the preparation and filing of a Registration
Statement on Form S-8 under the Securities Act of 1933, covering a proposed
400,000 shares of the Company's Common Stock, no par value (the "Shares"),
issuable pursuant to the 1998 Stock Incentive Plan (the "Plan"). We have
reviewed the corporate action of the Company in connection with this matter and
have examined and relied upon such documents, corporate records and other
evidence as we have deemed necessary for the purpose of this opinion.
Based on the foregoing, it is our opinion that the Shares have
been duly authorized and, when issued and sold pursuant to the Plan and
applicable Stock Option Agreements, the Shares will be legally issued, fully
paid and nonassessable. We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Tonkon Torp LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
and to all references to our Firm included in or made a part of this
Registration Statement on Form S-8 relating to Coffee People, Inc.'s Employee
Stock Option Plan.
ARTHUR ANDERSEN LLP
Portland, Oregon,
May 15, 1998
